United States v. Sanders , 43 F. App'x 249 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 24 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 00-5215
v. (N.D. Oklahoma)
FRANK SANDERS, JR., (D.C. No. 00-CR-31-C)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Circuit Judge, BALDOCK and HENRY , Circuit Judges.
Frank Sanders, Jr. appeals his convictions for (1) violation of 26 U.S.C. §§
5861(d), 5845, and 5871 (possession of an unregistered firearm – a sawed-off
rifle) and (2) violation of 18 U.S.C. § 922(g)(3) (possession of a firearm – the
sawed-off rifle and/ or one of several of other specified firearms – by an unlawful
user of a controlled substance). Mr. Sanders advances three contentions of error:
(1) the district court erred in admitting, in violation of the Fourth Amendment’s
exclusionary rule, (a) evidence of the particular firearms, the possession of which
*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
underlay both counts of which Mr. Sanders was convicted, (b) Mr. Sanders’s
statements in response to the discovery of one of those firearms, and (c) certain
evidence of Mr. Sanders’s drug use; (2) § 922(g)(3) is unconstitutionally vague,
as applied to the facts of Mr. Sanders’s case; and (3) the district court erred in
improperly instructing the jury as to the § 922(g)(3) charge. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On May 26, 1999, at least five police officers (Officers Scott, Shavney,
Stephens, Tryon, and Eberle) arrived at Mr. Sanders’s home to execute, on Mr.
Sanders, an outstanding arrest warrant. Mr. Sanders’s property included a trailer
home and a quonset hut. Three men, one of whom was Mr. Sanders, emerged
from the quonset hut and the police officers detained these gentlemen.
A. The Contested Searches of Mr. Sanders’s Trailer Home and Quonset
Hut
Officers Scott, Shavney, Stephens, Tryon, and Eberle proceeded to conduct
at least three distinct searches of Mr. Sanders’s quonset hut. First, Officer Scott,
soon after the emergence of the three detained gentlemen, entered the quonset hut
in order to perform a ‘protective sweep.’ When Officer Scott reemerged, he
reported having seen what he thought to be a methamphetamine lab. Officer
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Scott, accompanied by other officers including Officer Shavney, subsequently
reentered the quonset hut. While inside the quonset hut during this second search,
Officer Shavney observed materials that he, too, associated with a
methamphetamine lab.
After the initial two searches of the quonset hut, Officers Stephens and
Tryon sought Mr. Sanders’s consent to search the quonset hut for a third time.
Mr. Sanders signed a consent form authorizing “a complete search of my premises
and/or vehicle as described, 11313 East 191st Street, Tulsa County, Oklahoma,
and curtilage, with M[r]. Sanders, [sic] wife, Sue Sanders, present.” Rec. supp.
vol. I, at 117 (Tr. of Hr’g on Mot. to Suppress, dated Apr. 27, 2000; test. of
Officer Stephens). Despite the fact that the consent form clearly required Ms.
Sanders’s presence before the initiation of any search, several police officers
initiated, prior to Ms. Sanders’s arrival, a thorough search of the quonset hut.
During this third search, the police officers discovered a large number of items
associated with the production of methamphetamine. The police officers also
discovered a number of firearms, including a “sawed-off .22 rifle” with a
“Gatling device on it.” Id. at 26, 28 (Tr. of Hr’g on Mot. to Suppress, dated Apr.
27, 2000; test. of Officer Shavney).
When Officer Shavney, carrying the sawed-off rifle, emerged from the
quonset hut, Mr. Sanders exclaimed, as recalled by Officer Shavney: “I’m going
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to get screwed, or that’s going to screw me, or something, but that kind of
reaction.” Id. at 28-29. Officer Eberle remembered Mr. Sanders’s statement
rather more colloquially: “I’m fucked now.” Rec. vol. V, at 178-79 (trial test. of
Officer Eberle). Officer Stephens testified that Mr. Sanders “made a statement
that he had purchased [the ‘Gatling device’] at a gun show . . .” Rec. supp. vol. I,
at 116 (Tr. of Hr’g on Mot. to Suppress, dated Apr. 27, 2000; test. of Officer
Stephens). These statements, taken together, strongly suggest Mr. Sanders’s
ownership of the sawed-off rifle.
A subsequent search of Mr. Sanders’s trailer home revealed “drug
paraphernalia, methamphetamine, [and] marijuana,” Aplt’s Br. at 8, as well as
several additional firearms.
B. Other Evidence of Drug Use
In addition to the evidence of drug use (or at least possession) developed
from the searches described above, Mr. Sanders tested positive for drug use and/
or admitted such use on a number of occasions before and after the May 26, 1999
search and arrest. On February 26, 1999, Officer Tryon discovered Mr. Sanders
in possession of methamphetamine. On March 1, 1999, Mr. Sanders admitted
using methamphetamine and marijuana two weeks prior to that date. On July 26,
1999, Mr. Sanders tested positive for the use of amphetamines and admitted some
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use of drugs. On August 9, 1999, Mr. Sanders tested positive for marijuana. On
September 13, 1999, Mr. Sanders tested positive for marijuana use and admitted
such use. On October 18, 1999, Mr. Sanders tested positive for amphetamines
and admitted using drugs on that occasion. On October 25, 1999, Mr. Sanders
tested positive for the use of amphetamines, cocaine, and marijuana. On
November 1, 1999, Mr. Sanders tested negative for drug use, but, on November
22, 1999, he again tested positive for amphetamine use. On May 2, 9, and 25,
2000, Mr. Sanders tested positive for methamphetamine and marijuana, among
other drugs.
C. Indictment and Trial
The United States indicted Mr. Sanders on March 10, 2000, later issuing a
superceding indictment on May 8, 2000. Mr. Sanders filed a motion to suppress
all the evidence gathered in the May 26, 1999 search of his property, specifically
including evidence of his statements made in response to the removal of the
sawed-off rifle from the quonset hut. After conducting an evidentiary hearing,
the district court confirmed that the May 26, 1999 searches were conducted
without a search warrant. While the district court determined that the ‘protective
sweep’ doctrine established the constitutionality of the first search of the quonset
hut, the court explicitly questioned whether Mr. Sanders’s consent was sufficient
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to cleanse either the third search of the quonset hut or the search of the trailer
home. Nonetheless, without ruling definitively on the legality of the latter two
searches, the district court invoked the doctrine of inevitable discovery to
overrule Mr. Sanders’s motion to suppress.
Asserting that 18 U.S.C. § 922(g)(3) is unconstitutionally vague, Mr.
Sanders also moved to dismiss the charged unlawful possession of a firearm by a
user of a controlled substance. The court denied this motion, and Mr. Sanders
submitted proposed jury instructions as to that charge. The district court
ultimately instructed the jury – over Mr. Sanders’s objection – that, in order to
convict Mr. Sanders of violating § 922(g)(3), the jury had to find “that the
defendant was an unlawful user of a controlled substance during the time period
charged in Count 2 of the Information . . .” Aple’s Br. at 50. 1 Also over Mr.
Sanders’s objection, the district court defined an ‘unlawful user of a controlled
substance’ as “one who regularly, at reoccurring times, unlawfully uses a
controlled substance.” Id. The district court continued: “The government only
need prove the defendant was an unlawful user of a controlled substance during
the time he possesses firearms. The government need not prove the defendant
actually illegally used a controlled substance at the same time he was in
1
We are hesitant to merely cite to the government’s brief to establish the
actual jury instructions given at Mr. Sanders’s trial. The parties, however, have
neglected to designate the jury instructions for inclusion in the appellate record.
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possession of the firearm.” Id. at 51.
II. DISCUSSION
A. The Challenged Search
Mr. Sanders first challenges the district court’s admission of the evidence
obtained in the May 26, 1999 search of his trailer home and quonset hut. This
evidence consists of: (1) physical evidence, including the sawed-off rifle, other
firearms, and various forms of drug paraphernalia and (2) Mr. Sanders’s
statements in response to the discovery of the sawed-off rifle. The government
acknowledges both obtaining the challenged evidence via an illegal search of Mr.
Sanders’s property and the fact that, ordinarily, such a violation of Mr. Sanders’s
rights would render the given evidence inadmissible. The government does argue,
however, that the district court correctly applied the doctrine of inevitable
discovery to salvage the admissibility of both the physical evidence and Mr.
Sanders’s statements. Mr. Sanders, on the other hand, counters that the inevitable
discovery doctrine is not properly applicable to either type of challenged
evidence.
We consider, in turn, the admissibility of the physical evidence and the
admissibility of Mr. Sanders’s statements. In so doing, we review the ultimate
Fourth Amendment issues de novo; we review any relevant district court factual
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determinations, however, only for clear error. See United States v. Souza, 223
F.3d 1197, 1201 (10th Cir. 2000) (“Although we review the ultimate Fourth
Amendment question de novo, the district court’s factual determinations are
reviewed only for clear error.”).
1. Admissibility of the Physical Evidence
Regarding the applicability of the inevitable discovery doctrine to the
admissibility of the relevant firearms and the evidence of Mr. Sanders’s drug use,
Mr. Sanders argues that we may not apply the inevitable discovery doctrine
unless, at the time of the illegal search, the government had already initiated the
alternative investigation by which the government would have inevitably
discovered the challenged evidence. Our decision in a case that Mr. Sanders fails
to discuss – United States v. Larsen, 127 F.3d 984 (10th Cir. 1997) –, however,
expressly rejects this position.
In Larsen, the police, suspecting that Mr. Larsen was dealing in stolen cars,
illegally searched Mr. Larsen’s home. During the search, the police discovered
evidence confirming Mr. Larsen’s illegal conduct. Given the illegal search, a
judge suppressed the discovered evidence, effectively destroying the prosecutor’s
case. The local police contacted the Federal Bureau of Investigation (the “FBI”),
passing to the FBI evidence obtained in the illegal search. Simultaneously, the
FBI received a second tip suggesting the need to investigate Mr. Larsen. The
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second tip arose when a police officer who participated in the illegal search
happened to mention, to a local banker, the police suspicion regarding Mr.
Larsen’s title to certain vehicles. Fearing that Mr. Larsen may have defrauded the
bank in securing loans based upon those car titles, the banker followed routine
procedure in filing a report with the Federal Deposit Insurance Corporation (the
“FDIC”); the FDIC, in turn, followed routine procedure in notifying the FBI. The
FBI, in possession of two tips suggesting an investigation of Mr. Larsen, did so,
eventually bringing charges against Mr. Larsen. Mr. Larsen moved to suppress
the evidence gathered by the FBI as a fruit of the illegal search (absent the illegal
search, the FBI would never have been led to investigate Mr. Larsen).
We salvaged the admissibility of the FBI’s evidence by invoking the
inevitable discovery doctrine. The Larsen panel indicated that, insofar as the FBI
investigation depended upon the first tip (from the local police), the FBI
investigation was the fruit of the illegal search, thus leaving the FBI’s evidence
inadmissable. The panel continued, however, by further indicating that the
second FBI tip (via the banker and FDIC) was not fruit of the poisonous tree
because the suspicion of the local police (communicated to the banker) predated
the illegal search. Since the record contained evidence that the FBI would have
investigated based upon the second tip alone, the panel affirmed the district
court’s application of the inevitable discovery doctrine: the FBI would inevitably
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have discovered Mr. Larsen’s bank fraud and money laundering via an
independent, legal means.
For the Larsen panel, the fact that the FBI investigation (the lawful means
of discovering the evidence) was not ongoing at the time of the illegal search was
not controlling. The inevitable discovery doctrine does not necessarily require
that the separate, lawful means of obtaining the challenged evidence be “already
underway”; rather, the doctrine requires “only that the investigation that
inevitably would have led to the evidence be independent of the constitutional
violation.” Larsen, 127 F.3d at 987. The panel further explained: “The fact that
another investigation was already underway when a constitutional violation
occurred is strong proof that [the alternative investigation] was independent of the
illegal investigation . . . . However, it is possible for an investigation that begins
after the violation to be independent of the illegal investigation.” Id.
In Larsen, then, we squarely rejected Mr. Sanders’s contention: “We
conclude [that] the inevitable discovery exception applies whenever an
independent investigation inevitably would have led to discovery of the evidence,
whether or not the investigation was ongoing at the time of the illegal police
conduct.” Id. at 986 (emphasis added); see also 3 C HARLES A LAN W RIGHT ,
F EDERAL P RACTICE AND P ROCEDURE § 677, at 375 n.14.1 (2d ed. Supp. 2002)
(citing Larsen for the proposition just quoted); S TEPHEN E. H ESSLER ,
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E STABLISHING I NEVITABILITY W ITHOUT A CTIVE P URSUIT : D EFINING THE
I NEVITABLE D ISCOVERY D OCTRINE E XCEPTION TO THE F OURTH A MENDMENT
E XCLUSIONARY R ULE , 99 M ICH . L. R EV . 238 (2000) (arguing against rigid
application of an active pursuit element of the inevitable discovery doctrine).
Applying Larsen to Mr. Sanders’s case dictates admission, via the inevitable
discovery doctrine, of the physical evidence discovered during the May 26, 1999
search of Mr. Sanders’s property. 2
2. Admissibility of Mr. Sanders’s Statements
We next consider the district court’s failure to suppress Mr. Sanders’s
statements suggesting his ownership of the sawed-off rifle. Here we assume,
though without deciding, both that (1) Mr. Sanders’s statements are suppressible
as the product of the illegal search of his quonset hut and (2) that the inevitable
discovery doctrine does not apply to those statements, see, e.g., United States v.
2
While Mr. Sanders does not raise this point, we have, in a case post-
dating Larsen, referred to “steps taken to obtain a warrant prior to the unlawful
search” as “prerequisite” to application of the inevitable discovery doctrine.
Souza, 223 F.3d at 1205. The ‘prerequisite’ description, however, constitutes
dicta – and probably inadvertent dicta at that – in an opinion that, in another part,
explicitly acknowledges, without challenging, the holding of Larsen. See id. at
1203 n.7 (“Larsen focused solely on whether the inevitable discovery rule
requires proof of a separate investigation ongoing at the time of the constitutional
violation.”). In any case, we are bound by our holding in Larsen until that
holding is called into question by Supreme Court precedent or reviewed by our
court en banc. See Haynes v. Williams, 88 F.3d 898, 900 & n.4 (10th Cir. 1996)
(“[W]hen faced with an intra-circuit conflict, a panel should follow earlier, settled
precedent over a subsequent deviation therefrom.”).
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Vasquez De Reyes, 149 F.3d 192, 195-96 (3d Cir. 1998). Having assumed error
in the admission of the contested statements, we hold that error harmless.
The government, during briefing, neglected to raise the prospect of
harmless error. 3 This failure requires us to pause to consider whether we remain
free to raise that issue sua sponte.
Where the government has failed to raise the prospect of harmless error, we
enjoy a considerable degree of discretion in deciding whether to address that
prospect. See United States v. Samaniego, 187 F.3d 1222, 1224-26 (10th Cir.
1999) (declining to apply harmless error review where the government failed to
raise the issue); United States v. Torrez-Ortega, 184 F.3d 1128, 1136-37 (10th
Cir. 1999) (same); Lufkins v. Leapley, 965 F.2d 1477, 1481-82 (8th Cir. 1992)
(applying harmless error review despite the government’s failure to raise the
issue). In Samaniego and Torrez-Ortega, the respective panels considered three
factors in deciding whether to apply harmless error review: “(1) the length and
complexity of the record; (2) whether the harmlessness of the errors is certain or
debatable; and (3) whether a reversal would result in protracted, costly, and futile
proceedings in the district court.” 4 Samaniego, 187 F.3d at 1225; see also Torrez-
3
At oral argument, when thrown the rope, the government assured us that
it did favor application of harmless error review.
4
In Samaniego, 187 F.3d at 1225 n.2, we questioned the utility of the third
factor (whether a reversal would result in protracted, costly, and futile
(continued...)
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Ortega, 184 F.3d at 1136-37.
Here, the trial record is not extraordinarily complex. Mr. Sanders’s trial
involved a single defendant charged in a three-count indictment; the trial lasted
three days. Nor is the outcome of the harmlessness inquiry, if undertaken, in
serious doubt. As we explain below, that inquiry strongly suggests the
harmlessness of the admission of Mr. Sanders’s statements. Finally, a reversal
would require a retrial. In light of these considerations, we elect to exercise our
discretion to reach the harmlessness inquiry.
Because our case presents a constitutional error, see Mapp v. Ohio, 367
U.S. 643, 646-660 (1961) (applying the exclusionary rule to evidence admitted in
a state case), we review Mr. Sanders’s claim of error under the standard
developed in Chapman v. California, 386 U.S. 18 (1967). Where the error is
constitutional, Chapman requires that the government demonstrate that the error
was “harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24.
Here, Mr. Sanders’s possession of the sawed-off rifle was an important
element of both of his convictions. Certainly the improperly admitted statements
suggested Mr. Sanders’s possession of that firearm. Nevertheless, we are
convinced “beyond a reasonable doubt” that the admission of the statements did
(...continued)
4
proceedings in the district court).
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not “contribute[] to the conviction” of Mr. Sanders. Id. The firearm, was, after-
all, discovered inside Mr. Sanders’s quonset hut. Even absent Mr. Sanders’s
statements, he could not have seriously contested his possession of the sawed-off
rifle. Thus, we hold harmless the improper admission of Mr. Sanders’s
statements.
B. The Constitutionality of 18 U.S.C. § 922(g)(3)
Mr. Sanders next raises a due process challenge to 18 U.S.C. § 922(g)(3);
Mr. Sanders argues that, as applied to his case, § 922(g)(3) is unconstitutional in
that § 922(g)(3) requires an insufficient temporal nexus between drug use and
firearm possession, thus leaving the statute unconstitutionally vague. Mr. Sanders
insists that “the evidence at trial established no temporal proximity between Mr.
Sanders[’s] use of controlled substances and the possession of the firearms in
question. Without a requirement of temporal proximity there is no limitation
upon the statute, and [thus the statute] provides insufficient notice of what
conduct is prohibited.” Aplt’s Br. at 28.
The government does not dispute that § 922(g)(3) may be void for
vagueness in the absence of a sufficiently close temporal link between a
defendant’s drug use and firearm possession. The government does dispute Mr.
Sanders’s characterization of the evidence in his own case as insufficient to
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establish such a temporal nexus.
Reviewing de novo Mr. Sanders’s challenge to the constitutionality of §
922(g)(3), see United States v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000) (“We
review challenges to the constitutionality of a statute de novo.”), we affirm the
constitutionality of that statute as applied to Mr. Sanders’s conduct.
Mr. Sanders is probably correct in asserting that 18 U.S.C. § 922(g)(3) is
unconstitutionally vague in the absence of a judicially-created requirement of
sufficient temporal nexus. See United States v. Reed, 114 F.3d 1067, 1071 (10th
Cir. 1997) (reversing a district court’s finding that § 922(g)(3) is, on its face,
unconstitutionally vague but remanding for determination of whether § 922(g)(3)
might well be unconstitutionally vague as applied in the instant case and thus to
address “the [district court] judge’s quite valid concern that the statute provides
no time frame in which ‘use’ must occur in order for someone to be an unlawful
user”) (some internal quotation marks omitted). Nevertheless, Mr. Sanders is not
correct to assert that his case is one of insufficient temporal nexus.
There is no direct evidence that Mr. Sanders was using drugs on May 26,
1999, the date the police discovered the sawed-off rifle. In fact, the evidence may
suggest otherwise. See Rec. vol. IV, at 130-31 (trial test. of Officer Shavney)
(answering “No” when asked whether, at the time of the May 26, 1999 search of
Mr. Sanders’s property, Mr. Sanders “appear[ed] to be under the influence of any
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drugs”). The evidence does suggest that Mr. Sanders was a chronic drug user in
the period following the discovery of the firearm, at least between July 26, 1999
and May 25, 2000. Further, Mr. Sanders was discovered in possession of
methamphetamine on February 26, 1999, three months prior to the discovery of
the sawed-off rifle. On March 1, 1999, Mr. Sanders admitted using
methamphetamine and marijuana two weeks prior to that date. Finally,
methamphetamine residue, marijuana, and various forms of drug paraphernalia
were discovered in Mr. Sanders’s residence at the time of the discovery of the
firearm, May 26, 1999. This evidence, taken together, adequately demonstrates
that Mr. Sanders used drugs in sufficient temporal proximity to his possession of
one or more of the firearms discovered on his premises on May 26, 1999; §
922(g)(3), as applied to Mr. Sanders’s case, is not unconstitutionally vague.
C. The Challenged Jury Instructions
Finally, Mr. Sanders argues that the district court erred in instructing the
jury as to the charged violation of 18 U.S.C. § 922(g)(3). According to Mr.
Sanders, the jury instructions given by the district court failed to require any
temporal proximity between Mr. Sanders’s drug use and his possession of the
sawed-off rifle. The government does not dispute that the jury instructions
should, indeed, have required at least some temporal connection between Mr.
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Sanders’s drug use and firearm possession. Rather, the government seems to
argue that the jury instructions did include such a requirement.
“The question of whether the jury was properly instructed is a question of
law” and is thus subject to de novo review. United States v. Voss, 82 F.3d 1521,
1529 (10th Cir. 1996). Jury instructions are, however, considered as a whole,
with the reviewing court evaluating whether the jury, considering those
instructions as a whole, was misled. See United States v. Mullins, 4 F.3d 898,
900 (10th Cir. 1993) (“The standard is not whether the instruction was faultless in
every respect. Only where the reviewing court has substantial doubt that the jury
was fairly guided will the judgment be disturbed.”).
The jury instructions given in Mr. Sanders’s trial, read carefully, require no
temporal proximity between Mr. Sanders’s drug use and firearm possession.
While this failure does not mandate reversal if the jury instructions, taken as a
whole, would nonetheless “fairly guide[]” the jury, Mullins, 4 F.3d at 900, here
the jury instructions, read as a whole, cannot be said to “fairly guide” the jury.
Thus we have error; nonetheless, on these facts, we find that error harmless.
The district court’s jury instructions failed to require the jury to identify
any temporal proximity between Mr. Sanders’s drug use and possession of the
sawed-off rifle. The instructions did require the jury to find that Mr. Sanders was
a drug ‘user’ “during the time period charged.” Aple’s Br. at 50. At first glance,
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then, the jury instructions appear to have included the element of temporal
proximity. Unfortunately, however, the jury instructions defined ‘user’ as “one
who regularly, at reoccurring times, unlawfully uses a controlled substance.” Id.
Given that definition, a defendant could acquire the status of a ‘user’ at the age of
fifteen, forever halt the use of drugs at age sixteen, gain possession of a firearm
at age sixty, and thus find him- or herself in violation of § 922(g)(3). That is, the
defendant would retain the ‘user’ status while possessing a firearm. As the
district court flatly confirmed, the government “need not prove the defendant
actually illegally used a controlled substance at the same time he was in
possession of the firearm.” Id. at 51.
Given that the district court’s jury instructions were infirm, the panel must
ask whether, considering those jury instructions as a whole, the panel has
“substantial doubt” that the district court failed to “fairly guide” the jury in
evaluating the evidence. Mullins, 4 F.3d at 900. The district court provided four
sentences explaining § 922(g)(3)’s requisite connection between firearm
possession and status as a drug user. Reading those four sentences together
leaves us with substantial doubt that the jury was fairly guided: the instructions
fail to communicate the necessity of temporal proximity.
Finally, given the identification of trial error, we would ordinarily next
consider the prospect of harmless error. Again, however, the government failed
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to raise this issue during briefing. 5 As noted above at Section II(A)(2), we may
nevertheless choose to address the issue. Since the trial record is not
extraordinarily complex, the outcome of the harmless error inquiry as to the errant
jury instructions is not in serious doubt, and a reversal would require a retrial, we
elect to exercise our discretion to reach the harmlessness inquiry. See United
States v. Samaniego, 187 F.3d 1222, 1224-26 (10th Cir. 1999) (considering the
three factors just identified); United States v. Torrez-Ortega, 184 F.3d 1128,
1136-37 (10th Cir. 1999) (same).
Because the given jury instructions removed the temporal proximity
element of the § 922(g)(3) offense, and thereby probably rendered that offense
unconstitutionally vague under our precedent, see United States v. Reed, 114 F.3d
1067, 1071 (10th Cir. 1997), we employ the Chapman v. California, 386 U.S. 18
(1967), standard of harmless error review. Thus, as noted above, we inquire
whether the given error is “harmless beyond a reasonable doubt.” Chapman, 386
U.S. at 24.
On these facts, we find the errant jury instructions harmless. As noted in
our discussion in Section II(B), above, the government introduced voluminous
and uncontroverted testimony regarding Mr. Sanders’s drug use before, after, and
5
At oral argument, the government assured us, again, that application of
harmless error review would, in fact, be appropriate.
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at the time of the discovery of the sawed-off rifle and other firearms in Mr.
Sanders’s trailer home and quonset hut. We are convinced, beyond a reasonable
doubt, that the errant jury instructions did not contribute to Mr. Sanders’s
conviction. Any reasonable juror would have concluded that Mr. Sanders’s drug
use occurred in adequate temporal proximity to Mr. Sanders’s possession of the
sawed-off rifle.
III. CONCLUSION
For the reasons set forth above, we AFFIRM Mr. Sanders’s conviction and
sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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